Chamberlin Appeal from Probate

39 A. 734, 70 Conn. 363, 1898 Conn. LEXIS 21

Opinion

Torrance, J.

In 1879 Mr. Chapman died, leaving a will in which he gave the life use of all his property to his wife, and at her death he gave it to such person or persons as she by her will should appoint. In 1880 the executor under this will rendered Ms final admmistration account, wMch was accepted and allowed. In 1884 Eunice, the wife of Mr. Chapman, died, leaving a will in which she appomted Gelon W. West as the person to receive all the estate of her husband M her possession at her decease, and also gave to him the entire residue of her own estate, m trust to pay the rents and profits of the entire property to her son Doremus during his life, and at Ms decease to distribute the trust property to those persons who should then be Ms natural heirs at law. In November, 1889, West, the trustee and executor under the will of EuMce, filed his accounts as trustee and as executor, wMch were duly allowed and accepted. He then had in Ms possession something over fifteen thousand dollars belongmg to the trust fund, consisting of both real and personal estate. He resigned Ms office of trustee, and Mr. Paulk was appointed his successor in that office. West died M 1890. Paulk has acted as trustee, under the will of Eunice, since Ms appointment.

In December, 1896, Doremus died, leaving a mil in which he left all his property to his widow. The executor under that will claimed that the trust property in Paulk’s hands at the death of Doremus, was intestate property belonging to the estates of Elijah and Eunice, in which he had an interest, and that an administrator de bonis non upon each estate should be appointed, in order that said claim might be tried and determined. The Superior Court took the executor’s view of this matter, and the principal question here is whether it erred in so doing.

The claim that the property in Paulk’s hands is intestate property, is based upon the assumption that the gift over to the heirs of Doremus, in his mother’s will, is void. The appellants claim, in substance: 1. That even on the assumption that the property in Paulk’s hands is intestate estate, it would not be assets in the hands of an administrator de bonis non, because it has been already fully administered, and consequently such an administrator ought not to be appointed, for he would have nothing whatever to do. 2. That the question whether the property is or is not intestate estate, was not properly before the lower court and could not be determined by it. 3. That if such question was before it for determination, it should have held the gift over to be valid and not void.

The first claim is not tenable. It is based mainly upon rules of the common law which were never adopted in this State,' or have been changed or modified by statute, or have little or no application in these cases. At common law “ executors and administrators took the legal title to the goods and chattels of the deceased; nor were they, before the statute of distribution, 22d and 23d, Car. II., (1670), bound to distribute the surplus after the payment of debts. Both held in autre droit, and therefore neither could dispose by will of the property remaining in specie; both had the power, while living, of changing, altering and converting the property, and whatever was thus altered or converted, became their own goods and descended, on their deaths, to their own representative. Such change or conversion of the goods, was (so far as regards the administrator cle bonis non), a complete administration, and put them as effectually beyond the reach of Ms commission, as if they had never belonged to the testator or intestate.” Coleman v. McMurdo, 5 Rand. (Va.) 51, 55; Potts v. Smith, 3 Rawle (Pa.), 361; Beall v. New Mexico, 16 Wall. 535; and cases cited in note in 24 Amer. Dec. 379.

A somewhat technical meanmg was thus given to the word “ administered,” so far as regarded the admmistrator de bonis non. As to him, goods, chattels, or credits of the decedent, changed, altered or converted by the executor or administrator, were “ administered.” The administrator de bonis non succeeded only to goods, chattels and credits of the decedent which had not been administered; and goods, chattels and credits “not administered,”meant goods, chattels and credits which had been the property of the decedent at Ms death, and remained M specie, unchanged and unconverted when the administrator de bonis non was appomted. Thus money received by the former executor or administrator M his representative capacity, and kept by itself separate from his own money, is regarded as “not administered ; ” but if mixed and mmgled with his own money so that its identity is gone, it is regarded as' converted and so “ administered,” so far as the administrator de bonis non is concerned. Beall v. New Mexico, supra, 535; Marvel v. Babbitt, 143 Mass. 226. The administrator de bonis non was regarded as taking the specific property of the decedent, as Ms immediate successor, and not as succeeding to a prior executor or administrator; hence there was said to be no privity between them. Suits brought by or against the predecessor could not as a rule be prosecuted by or against his successor, and judgments obtamed by or agamst the predecessor were not available in favor of nor against the successor. Alsof v. Mather, 8 Conn. 584; Amer. Board, etc., Appeal, 27 id. 344.

These rules of the common law have been changed or modified to some extent in many, if not most, of the States, including our own. The rule that an executor or an admin istrator was entitled to the surplus of the personal estate after the payment of debts, was never adopted in this State. Bacon v. Fairman, 6 Conn. 121-129. They are regarded here as mere agents or trustees for those beneficially entitled to the property, as creditors, legatees, heirs or distributees. Woodhouse v. Phelps, 51 Conn. 521-523; Robbins v. Coffing, 52 id. 118, 143 ; Wilmerding v. Russ, 33 id. 67. And it is now made a crime for any executor or administrator to “ wrongfully appropriate and convert to his own use the money, funds, or property” of the estate. General Statutes, § 1579. At the very beginning of this century it was by statute made the duty of an administrator de bonis non, “ to ask for, demand and receive,” of his predecessor, “ his heirs ... or administrators, all the goods and effects of the deceased, and also all the books of account, bonds, notes or other securities, documents or papers whatsoever, touching the estate, which may be needed in the settlement thereof ”; and it was further provided that all actions at law or in equity, pending against-such predecessor when he went out.of office, should survive and might be prosecuted by or against his successor. Revision of 1808, p. 272. These provisions, in substance, have been law ever since, and other changes in the same direction have been made from time to time, as shown by the General Statutes. An executor of an executor is no longer, as at common law, entitled to administer the estate of the first testator; § 553. When a will disposes of only a part of the estate, the executor or administrator with the will annexed is ex officio the administrator of the intestate estate; § 564. When an executor or administrator dies before completing or accounting for his trust, his personal representative must settle the account in the Court of Probate, and pay the amount found due to the successor; § 617. Courts of probate, after the removal of an executor or administrator and the appointment of his successor, may enforce the delivery of property held by the former, to the latter, “ in the same manner as a court of equity might do ”; § 612. Under § 445, an executor or administrator paying money or delivering property pursuant to the order of a Court of Pro bate having jurisdiction, is protected from personal liability, even if the order is subsequently set aside; but the property so delivered or money paid, may be recovered “by the per-s'on entitled thereto, from any person receiving or in possession of the same.” These, and other statutory changes which it is unnecessary to refer to, have modified the doctrines of the common law with reference to the rights and duties of an administrator de honis non.

Under the changes thus made in our law this court, in Pinney v. Barnes, 17 Conn. 420, 427, held that money of the estate in the hands of an executor removed from office, “ no matter from what source received, nor for whom ultimately destined,” belongs to the administrator de honis non, and that he was the proper party to institute proceedings to recover the same against his predecessor in office. In Mansfield v. Lynch, 59 Conn. 320, it was held that where an executor had paid over money of the estate by mistake to a creditor, the administrator de honis non could sue for and recover from the. creditor the money so paid. In that case the money so paid by the executor wrongfully or mistakenly, was an asset of the estate which had been administered by him, within the technical common law meaning of that word, but this fact was not allowed to defeat the right of the administrator to sue for and recover it.

If, then, the property here in question is intestate estate, and has already been administered within the common law meaning of that term, so that under the rules of that law an administrator de honis non could not claim it nor administer it, still, we think that under our law such an administrator would be entitled to claim and recover and administer it. It does not appear to be wanted to pay debts, but if it be intestate property it is wanted for distribution, and administration is never complete until the assets of the estate have been turned over to those rightfully entitled to them.

But even if the strict rules of the common law are to govern in this matter, we think, on the facts found, that the administrator de honis non would be entitled to recover, hold and administer this property, if intestate. It is found that the property in Paulk’s hands is substantially the same identical property -which belonged to Elijah and to Eunice Chapman. It still exists in specie, unchanged and unconverted, so far as appears, in the hands of a third person, who, if it be intestate property, has no legal right to it. Under these circumstances it would, even under the rules of the common law, go to the administrator de bonis non. Beall v. New Mexico, supra.

In either view of this matter, then, if the property is in fact intestate, we think the administrator de bonis non of the estates of Elijah and Eunice Chapman, is entitled to recover, hold and administer it as assets of those estates. Indeed he is the only person who can properly do so. Pinney v. Barnes, 17 Conn. 420.

The appellants say that the distributees of Elijah and Eunice can sue for and recover it and divide it amongst themselves, all the debts having been paid. But who are the distributees ? That question must be settled by the Court of Probate, and in order that it may do so, “ it is plainly essential that such an estate (an intestate estate) should be pending for settlement in said court, in the orderly and prescribed way.” Conn. Trust, etc., Co. v. Security Co., 67 Conn. 438, 442. And to secure this essential in the cases at bar, the executor of both estates being dead and no successor ever having been appointed, it is necessary that an administrator de bonis non upon each estate should be appointed.

The claim of the appellants, that Paulk was appointed as the successor of West in the administration, and was now administrator, is not borne out by the finding, and need not be further considered.

The other two grounds of error claimed may be considered together. They are, briefly, first, that the court below erred in construing the wills at all; and second, that it erred in holding that the gift over in Eunice’s will was void.

The power to determine directly and conclusively the construction to be given to wills, is not committed to the Court of Probate, nor to the Superior Court sitting as an appellate court of probate. Such a power involves the right to try and finally determine disputed titles to property real and personal, and this is not given to those courts. Hewitt’s Appeal, 53 Conn. 24; Mallory’s Appeal, 62 id. 218; Cone et al. Appeal, 68 id. 84. But though the Court of Probate cannot directly try and finally determine questions of title to personal property, it has the power to pass upon, them incidentally and indirectly and for some specific purpose, whenever such an incidental power is necessary to the exercise of a jurisdiction confessedly conferred upon it. Thus it has been held that, although it is not competent for the Court of Probate to determine directly the amount or validity of creditors’ claims, it had power, in the settlement of the administration account, to decide on the validity of the claims of creditors paid by the administrator or executor, so far as respects the allowance of such payments in his account; Edmond v. Canfield, 8 Conn. 87; and that it had the incidental power to determine who the heirs are, “for the particular purpose of completing the settlement of the estate, and in order that the executor may be protected;” Davenport v. Richards, 16 Conn. 310, 319. The Court of Probate has the exclusive power to appoint executors and administrators, under conditions prescribed by law; and in determining, in a given case, whether it will exercise that power, it must possess the incidental power to decide, subject to review on appeal, whether the conditions for the exercise of its power to appoint, exist; and this may include, in cases like the present, the power to construe wills for the purpose of deciding whether the claim made under them is made in good faith, and whether it is or is not prima facie utterly without any foundation in law or in fact.

In the cases at bar the executor of Doremus claimed before the Court of Probate, that the property in question here was intestate estate, because the gift over in the will of Eunice Chapman was void; that if that were so, part of said property belonged to him as the representative of Doremus ; that the executor upon both estates was dead and no one had been appointed in his stead; and that he desired to have an administrator de bonis non appointed upon each estate, to the end that he might properly prosecute his claim. These claims he also made in the Superior Court. It was the province and duty of both courts to loot at the wills and to construe them to the extent, and for the purpose, of determining whether the claims were made in good faith, and whether they were or were not utterly without foundation in law or in fact. Further than this they were not bound to go. It was not within the province of either court nor was it its duty, to pass finally upon the validity of the executor’s claim that the gift over was void, nor did the Superior Court, we think, attempt to do this. In Woodhouse v. Phelps, 51 Conn. 521, an administrator de bonis non was appointed, though it turned out that there was nothing for him to do; in State v. Smith, 52 Conn. 557, such an administrator was appointed, although it turned out that there was no property belonging to the estate; in Conn. Trust, etc., Co. v. Security Co., 67 Conn. 438, such an administrator was appointed, although it was claimed that the property sought to be recovered through him had never vested in his decedent. In these and cases like them, it is not the duty of the Court of Probate, when asked to appoint an administrator de bonis non, to pass upon the legal Amlidity of the claims sought to be made available through such an appointment; Mallory’s Appeal, 62 Conn. 218; it is enough that the claim is made in good faith and appears to have some foundation in fact or in law.

If the claim of the executor was made in good faith, and did not prima fade appear to be utterly Avithout reason or foundation in fact or in law, and if the appointments might avail the executor, then we think that upon the other facts found it was the duty of the Court of Probate to make them.

In this view of the law there is no error apparent on the record.

In this opinion the other judges concurred.